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EXHIBIT 2.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement"), made and entered into
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as of January 4, 2001 between The InterCept Group, Inc., a corporation formed
under the laws of the State of Georgia ("InterCept"), and SLMsoft.com, Inc., a
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corporation formed under laws of the Province of Ontario ("Shareholder"),
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W I T N E S S E T H:
WHEREAS, InterCept, Shareholder and a subsidiary of Shareholder have
entered into a Purchase Agreement (amended and restated) dated as of November
29, 2000 (the "Purchase Agreement");
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WHEREAS, under the Purchase Agreement, InterCept will issue to Shareholder
shares of its common stock, and the parties to this Agreement desire for
Shareholder to have certain registration and other rights with respect to such
shares;
NOW THEREFORE, for and in consideration of the premises, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Closing Date" has the meaning specified in the Purchase Agreement.
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"Common Stock" means the voting common stock, without par value per share,
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of InterCept.
"Estimated Offering Price" the gross price obtained by multiplying (x) the
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number of shares of Common Stock specified by Shareholder in the applicable
registration request by (y) the highest closing price or bid price, as the case
may be, during the 30-calendar day period preceding the date that the notice is
given.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Securities" means shares of Common Stock issued to shareholder
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pursuant to the Purchase Agreement (including shares of Common Stock placed into
escrow), except that (y) any Registrable Securities resold in a public
transaction shall cease to be Registrable Securities, (x) on and after the
second anniversary of the Closing Date, securities shall not constitute
Registrable Securities if such securities may be resold in a public transaction
without registration under the Securities Act pursuant to Rule 144 under the
Securities Act, but only if (A) at the time of any such sale the Common Stock is
traded on either the NASDAQ National Market (or any
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successor thereto), the New York Stock Exchange or the American Stock Exchange;
and (B) Shareholder beneficially owns less than one percent (1%) of the
Company's outstanding Common Stock; and (z) any securities that would otherwise
be Registrable Securities shall cease to be Registrable Securities on the third
anniversary of the Closing Date.
"SEC" means the Securities and Exchange Commission or any other federal
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agency at the time administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, or any similar
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federal statute promulgated in replacement thereof, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect at the
time.
"Underwritten Public Offering" means a public offering of Common Stock for
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cash that is offered and sold in a registered transaction on a firm commitment
underwritten basis through one or more underwriters, all pursuant to an
underwriting agreement among InterCept, any selling shareholders and such
underwriters.
"Violation" means any of the following statements, omissions or violations:
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(i) any untrue statement or alleged untrue statement of a material fact
contained in a registration statement filed under or referred to in this
Agreement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto or any documents filed under
state securities or "blue sky" laws in connection therewith, (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading, or (iii)
any violation or alleged violation by InterCept of the Securities Act, the
Securities Exchange Act of 1934 (the "Exchange Act"), any state securities law
or any rule or regulation promulgated under the Securities Act, the Exchange Act
or any state securities law arising from, relating to or in connection with the
offer and sale of Registrable Securities pursuant to this Agreement.
2. Requests for Registration.
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(a) Subject to the conditions of and in accordance with the terms of
this Agreement, if at any time during the period beginning 120 calendar days
after the Closing Date and continuing through the second anniversary of the
Closing Date, Shareholder shall deliver a written request to InterCept, then
Intercept shall file (as expeditiously as practicable, and in any event within
60 days of the receipt of such request, but in no event sooner than 180 calendar
days after the Closing Date) and use its commercially reasonable best efforts to
effect, a registration statement on Form S-3 (or any successor form providing
for either (x) similar disclosures, or (y) less extensive disclosures if
InterCept elects, in its sole discretion, to use such form) under the Securities
Act covering the resale of all Registrable Securities that Shareholder requested
to be registered. Notwithstanding the foregoing, (A) if at the time of a request
InterCept has sold securities in an Underwritten Public Offering in which
Shareholder had the opportunity to sell at least 75% of the Registrable
Securities specified in a request under Section 3 below, then Intercept shall
not be required to file a registration statement upon a request by Shareholder
under this Section 2 until at least 180 days after the effective date of such
Underwritten Public Offering; and (B) in no event
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shall InterCept be obligated to file a registration statement for which the
Estimated Offering Price shall be less than $750,000.
(b) The right of Shareholder to registration pursuant to Section 2(a)
shall be conditioned upon Shareholder's participation and cooperation in the
offering.
(c) InterCept shall be entitled to include in any registration
statement referred to in this Section 2 shares of Common Stock to be sold by
InterCept for its own account or other then existing shareholders for their own
account.
(d) InterCept shall be entitled to postpone for a period of time not
exceeding 60 calendar days the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to this Section 2, if InterCept
has determined, in the exercise of reasonable judgment, that such action would
delay or interfere with any material financing, acquisition, corporate
reorganization, or other transaction involving InterCept then pending or
contemplated. InterCept agrees to provide a summary of the transaction to
Shareholder, provided that Shareholder has executed and delivered a
confidentiality agreement in form and substance reasonably acceptable to
InterCept in connection with any disclosures InterCept is required to make under
this paragraph, which agreement shall provide in part that Shareholder agrees
not to purchase or sell InterCept securities until the transaction is either
announced publicly or is terminated.
(e) If a registration statement pursuant to this Section 2 does not
become effective within 12 months after the initial filing thereof as a result
of any reason other than a material adverse development in the business or
condition (financial or other) of InterCept or other acts or matters within the
control of InterCept, or if such registration statement is abandoned or
withdrawn at the request of Shareholder, then, unless Shareholder, promptly upon
receipt of a request therefor, supported by an invoice setting forth the
expenses in reasonable detail, reimburses InterCept for the registration
expenses in respect of such registration statement, InterCept shall be deemed to
have satisfied its obligation pursuant to this Section 2 with respect to such
registration.
(f) Notwithstanding any other term or condition in this Agreement, no
request for registration pursuant to Section 2 shall be deemed to have been met
and InterCept shall be deemed not to have satisfied its obligations under
Section 2 with respect to such registration unless and until a registration
statement has become effective under the Securities Act. Notwithstanding this
Section 2(f), if Shareholder withdraws, or causes to be withdrawn, a
registration statement and fails to reimburse InterCept for the registration
expenses it has incurred (which shall be supported by a written invoice(s)
setting forth such expenses in reasonable detail), InterCept will be deemed to
have satisfied its obligations under Section 2 with respect to such
registration.
(g) InterCept shall be obligated to effect only two registrations
pursuant to a request by Shareholder as provided in this Section 2; provided,
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however, that if at any time before the second registration or deemed
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registration, InterCept has conducted an offering in which Shareholder sold or
could have sold Registrable Securities under the provisions of Section
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3 below, Shareholder shall be limited to one registration pursuant to a request
by Shareholder as provided in this Section 2. A registration shall be deemed to
satisfy (and count as a registration under) the foregoing obligation only when
it covers (or would have covered but for Shareholder's decision to withdraw its
shares from the registration) at least 75% of the Registrable Securities
specified in Shareholder's requests, provided that the mutual decision of
InterCept, Shareholder and the proposed underwriter of the offering in question
to delay or defer the filing of a registration or withdraw it shall not be
deemed to be a "registration" under this Section 2(g).
3. Piggyback Registration.
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If InterCept shall determine to register for sale for cash any of its
Common Stock, for its own account, other than a registration relating solely to
employee benefit plans or securities issued or issuable to employees or
consultants (including a registration on Form S-8), a registration relating
solely to an SEC Rule 145 transaction, a registration on Form S-4 in connection
with a merger, acquisition, divestiture, reorganization, or similar event, or a
registration on any registration form which does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of Registrable Securities, then InterCept shall promptly give
Shareholder written notice thereof and shall use its commercially reasonable
efforts to include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein,
all the Registrable Securities specified in a written request by Shareholder,
made no later than 10 days after the date of receipt of such written notice from
InterCept. However, InterCept may, with or without the consent of Shareholder,
withdraw such registration statement before the SEC has declared it effective if
InterCept elects in its sole discretion to do so.
4. Underwritten Public Offerings. If Shareholder intends to
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distribute the Registrable Securities covered by a request under Section 2 by
means of an Underwritten Public Offering, Shareholder shall so advise InterCept
in its request made pursuant to Section 2. If the registration being effected
under Section 3 is for an Underwritten Public Offering, InterCept shall so
advise Shareholder in its notice to Shareholder. In either such event the right
of Shareholder to registration shall be conditioned upon Shareholder's
participation in such underwriting and the inclusion of Shareholder's
Registrable Securities in the underwriting to the extent provided herein.
Shareholder shall (together with InterCept and any other shareholders of
InterCept distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by InterCept. Notwithstanding any other provision
of this Section 4, if the underwriter or InterCept determines that marketing
factors require a limitation of the number of shares to be underwritten, the
underwriter may exclude some or all Registrable Securities from such
registration and underwriting. InterCept shall so advise Shareholder, and the
number of shares of Common Stock that may be included in the registration and
underwriting, if any, shall be allocated among InterCept, Shareholder and any
other selling shareholders who have requested to sell in the registration on a
pro rata basis according to the number of shares requested to be included. No
Registrable Securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. If
Shareholder disapproves of the terms
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of any such underwriting, Shareholder may elect to withdraw therefrom by written
notice to InterCept and the underwriter.
5. Registration Procedures.
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(a) In the case of each registration, qualification, or compliance
effected by InterCept pursuant to Sections 2 or 3, InterCept will keep
Shareholder advised in writing as to the initiation of each registration,
qualification, and compliance and as to the completion thereof. At its expense,
InterCept will use its commercially reasonable best efforts to, subject to the
provisions of paragraph 5(b) below:
(1) furnish, on a reasonable and timely basis in advance, copies
of all registration materials and other documents proposed to be filed with the
SEC and other regulatory authorities to Shareholder and counsel selected by
Shareholder;
(2) keep such registration, qualification or compliance
effective for a period of 90 days from the date of the declaration of
effectiveness of such registration or until Shareholder has completed the
distribution described in the registration statement relating thereto, whichever
first occurs;
(3) furnish such number of prospectuses and other documents
incident thereto as Shareholder from time to time may reasonably request;
(4) prepare and file with the SEC and other applicable
regulatory authorities such amendments and supplements to the registration
materials as may be necessary to keep these registration rights effective and to
comply with the provision of the securities laws with respect to the sale or
other disposition of such Registrable Securities;
(5) cause the shares of Common Stock issued to Shareholder in
connection with the Purchase Agreement to be listed for trading on the Nasdaq
National Market and any other exchange where InterCept securities are listed;
(6) register and qualify the Registrable Securities covered by
such statement for offer and sale under such other securities or "blue sky" laws
of such states or jurisdictions as shall be reasonably requested by Shareholder;
provided, however, that InterCept shall not be required in connection therewith
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or as a condition thereto (i) to qualify to do business in any state or
jurisdiction where it would not otherwise be required to qualify but for the
requirements of this clause, (ii) to file a general consent to service of
process in any such state or jurisdiction, or (iii) to register as a dealer or
to cause any officer or employee of InterCept to register as a salesman in
effecting such registration or qualification;
(7) promptly notify Shareholder (with a copy to Shareholder's as
provided in the Purchase Agreement):
(i) whenever a prospectus relating thereto is required to
be delivered under the Securities Act, of the happening of any event as a result
of which the prospectus forming a part of such registration statement, as then
in effect, includes an untrue statement of a
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material fact or omits to state any material fact required to be stated therein,
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(ii) upon the receipt of InterCept of any notification
with respect to any comments by the SEC and other regulatory authorities with
respect to the Registration documents or any requests of the SEC or other
regulatory authority for the amending or supplementing thereof or for additional
information with respect thereto;
(iii) upon the issuance or written threat of issuance by
the SEC or other regulatory authority of any stop trading order, or stop order
suspending the effectiveness of such registration documents or the initiation or
threatening of any proceeding for that purpose (in which event InterCept shall
use its best efforts to prevent the issuance thereof or, if issued, to obtain
its withdrawal); and
(iv) upon the receipt of InterCept of any notification
with respect to the suspension of the qualification of such Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purposes.
(b) If InterCept determines that a registration statement effected
pursuant to this Agreement interferes with any material financing, acquisition,
corporate reorganization, or other transaction involving InterCept then pending
or contemplated, it shall notify Shareholder in writing of such transaction and
the resulting need to terminate or withdraw the registration statement.
Shareholder agrees to promptly execute and deliver a confidentiality agreement
in form and substance reasonably acceptable to InterCept in connection with any
disclosures InterCept is required to make under this paragraph, which agreement
shall provide in part that Shareholder agrees not to purchase or sell InterCept
securities until the transaction is either announced publicly or is terminated.
InterCept may withdraw or terminate such registration statement without
liability to Shareholder except as provided in paragraph 5(c) below with respect
to demand registration rights.
(c) If InterCept withdraws or terminates a registration covering
Registrable Securities of Shareholder, then, unless at least 75% of the
Registrable Securities specified in Shareholder's request have already been
registered and sold pursuant to that registration, the registration shall not be
deemed to satisfy (and count as a registration under) Section 2 above.
6. Existing Registration Rights. Other than registration rights to a
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holder of 350,000 shares of Common Stock, InterCept represents and warrants that
there are no outstanding registration rights with respect to the Common Stock.
Shareholder expressly agrees that notwithstanding any other provision of this
Agreement, Section 3 shall not apply to any registration effected by InterCept
upon the request of the holder of such rights.
7. Limitation on Future Registration Rights. From and after the date of
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this Agreement, InterCept shall not, without the prior written consent of
Shareholder, enter into any agreement with any holder or prospective holder of
any securities of InterCept that would allow such holder or prospective holder
to include such securities in any registration filed under this Agreement,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only on a pro-rata basis with
the Registrable
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Securities of Shareholder that are included therein (based on the numbers of
Registrable Securities and securities of the other holder requested to be
included in the registration). Similarly, from and after the date of this
Agreement, InterCept shall not, without the prior written consent of
Shareholder, enter into any agreement with any holder or prospective holder of
any securities of InterCept that would allow such holder or prospective holder
to request a registration unless under the terms of such agreement, Shareholder
is permitted to include Registrable Securities in any such registration on a
pro-rata basis with the securities of the other holder requested to be included
in the registration (based on the numbers of Registrable Securities and
securities of the other holder requested to be included in the registration).
InterCept agrees to promptly provide Shareholder with a copy of any agreement
providing for additional registration rights (provided that Shareholder shall
have signed a confidentiality agreement of the type referenced in Section 5(b)
if InterCept in its sole discretion so requires).
8. Registration Expenses. InterCept shall pay the expenses in connection
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with any registration under Sections 2 and 3, including, without limitation, all
registration, filing and NASD fees, printing expenses, all fees and expenses of
complying with securities or blue sky laws, and the fees and disbursements of
counsel for InterCept and of its independent accountants; provided, however,
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that Shareholder shall be obligated to pay the foregoing expenses in connection
with the second registration requested under Section 2. In any registration, (i)
each party shall pay for or otherwise bear its own underwriting discounts and
commissions and transfer taxes; and (ii) Shareholder shall pay for Shareholder's
legal expenses incurred in connection with such registration.
9. Volume and Timing Limitations. Notwithstanding any other provision of
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this Agreement, Shareholder shall not sell more than one-third of the
Registrable Securities originally issued to Shareholder in any of the following
six-month periods: (1) the six-month period beginning six months after the
Closing Date; (2) the six-month period beginning 12 months after the Closing
Date; or (3) the six-month period beginning 18 months after the Closing Date.
10. Notification by Shareholder of Proposed Sales Outside a Registration.
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If Shareholder proposes to sell more that 50,000 shares of the Registrable
Securities in a single transaction or series of transactions other than in a
registration hereunder, Shareholder shall notify InterCept in writing at least
20 calendar days in advance of the first such sale.
11. Assignment of Rights. Shareholder may assign its rights under this
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Agreement, in whole or in part, to any person who acquires at least 100,000
shares of the Registrable Securities from Shareholder, provided, however, that
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in each case (i) such transfer from Shareholder is in compliance with all
applicable securities laws, with such compliance established to the reasonable
satisfaction of InterCept and its counsel (provided that in no event shall any
transferee who acquires shares of Common Stock from Shareholder pursuant to Rule
144 succeed to Shareholder's rights hereunder), and (ii) such transferee or
assignee delivers to InterCept a written instrument by which such transferee or
assignee agrees to be bound by the obligations imposed on Shareholder under this
Agreement to the same extent as if such transferee or assignee was a party
hereto. Such written instrument shall provide that (i) all references herein to
Registrable Securities of Shareholder shall include the Registrable Securities
held by such transferee or assignee, with any allocation, exclusion or
limitation on Registrable Securities hereunder to be applied pro rata among the
Registrable Securities of Shareholder and the
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Registrable Securities of such transferee or assignee, and (ii) such transferee
or assignee shall be bound by any decision, election, waiver or consent of
Shareholder under this Agreement (including but not limited to decisions to
request or withdraw a registration, to waive defaults by InterCept or to amend
or modify this Agreement). Except as specifically permitted in this Section,
neither this Agreement nor any Shareholder's rights or privileges under this
Agreement can be assigned or transferred in whole or in part without the prior
written consent of InterCept.
12. Information by Shareholder. The holder of Registrable Securities
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included in any registration shall furnish to InterCept such information
regarding such holder and the distribution proposed by such holder as InterCept
may request in writing.
13. "Market Stand-off" Agreement. Shareholder will not sell or otherwise
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transfer or dispose of any Registrable Securities held by Shareholder (except
Common Stock included in such registration) during the 90-day period following
the effective date of any Underwritten Public Offering if so requested by
InterCept or the underwriters of such offering. The foregoing restriction shall
apply whether or not (i) Registrable Securities were included therein, and (ii)
Registrable Securities were excluded from such registration as permitted under
Section 4. InterCept may impose stop-transfer instructions with respect to the
shares subject to the foregoing restriction until the end of such period.
14. Indemnification.
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(a) In the event of the offer and sale of Registrable Securities held
by Shareholder under the Securities Act, InterCept shall, and hereby does,
indemnify and hold harmless Shareholder and each other Person, if any, who
controls Shareholder within the meaning of Section 14 of the Securities Act
against any losses, claims, damages, or liabilities, joint or several, to which
Shareholder or any such controlling person may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon a
Violation, and InterCept shall reimburse Shareholder and each controlling person
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, action,
or proceeding; provided, however, that InterCept shall not be liable in any such
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case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof), or expense arises out of or is based upon a
Violation that occurs in reliance upon and in conformity with written
information furnished to InterCept through an instrument duly executed by or on
behalf of Shareholder stating that it is for use in connection with such
registration. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of InterCept and shall survive the
transfer of such shares by Shareholder.
(b) InterCept may require, as a condition to including any
Registrable Securities to be offered by Shareholder in any registration
statement filed pursuant to this Section 14, that InterCept shall have received
an agreement from Shareholder to be bound by the terms of this Section 14,
including an undertaking reasonably satisfactory to it from Shareholder, to
indemnify and hold InterCept, its directors and officers, and each other Person,
if any, who controls InterCept within the meaning of Section 14 of the
Securities Act against any losses, claims, damages, or liabilities, joint or
several, to which InterCept or any such director or officer
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or controlling person may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any Violation, if such Violation
occurs in reliance upon and in conformity with written information about
Shareholder furnished to InterCept through an instrument duly executed by
Shareholder specifically stating that it is for use in connection with such
registration; provided, however, that such indemnity agreement found in this
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Section 14(b) shall in no event exceed the gross proceeds from the offering
received by Shareholder. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of InterCept or any such
director, officer, or controlling person and shall survive the transfer by
Shareholder of such shares.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in
Section 14(a) or (b) (including any governmental action), such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the indemnifying party of the commencement of such
action; provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under Section 14(a) or (b), except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist or the indemnified party may have defenses not
available to the indemnifying party in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. Neither an indemnified nor an indemnifying party shall be liable
for any settlement of any action or proceeding effected without its consent. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement that does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation.
(d) The indemnification required by Section 14(a) and (b) shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received, or expenses, losses,
damages, or liabilities are incurred.
(e) If the indemnification provided for in this Section 14 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense as is
appropriate to reflect the relative benefits received by the indemnified party
on the one hand, and the indemnifying party on the other from the offering of
the Common Stock, as well as other relevant equitable considerations.
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15. Miscellaneous
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(a) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Georgia applicable to contracts
between Georgia residents entered into and to be performed entirely within the
State of Georgia. Shareholder consents to exclusive jurisdiction by the federal
courts sitting in Fulton County in the State of Georgia.
(b) Successors and Assigns. Except as otherwise provided herein, the
----------------------
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto.
(c) Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties with regard to the subjects
hereof.
(d) Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be delivered in accordance
with the notice provisions of the Purchase Agreement.
(e) Delays or Omissions. No delay or omission to exercise any right,
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power, or remedy accruing to Shareholder of any Registrable Securities, upon any
breach or default of InterCept under this Agreement, shall impair any such
right, power, or remedy of Shareholder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereunder occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent, or approval of
any kind or character on the part of Shareholder of any breach or default under
this Agreement, or any waiver on the part of Shareholder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement, or by law or otherwise afforded to Shareholder, shall be
cumulative and not alternative.
(f) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which may be executed by less than all of the parties,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
(g) Severability. In the case any provision of this Agreement shall
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be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
(h) Amendments. The provisions of this Agreement may be amended at
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any time and from time to time, and particular provisions of this Agreement may
be waived, with and only with an agreement or consent in writing signed by
InterCept and Shareholder. Any amendment or waiver effected in accordance with
this subsection shall be binding upon each InterCept, each holder of Registrable
Securities at the time outstanding and each future holder of all such
securities.
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(i) Removal of Legends from Share Certificates. InterCept agrees to
------------------------------------------
instruct its transfer agent to issue to Shareholder share certificates without
restrictive legends replacing the certificates evidencing the Registrable
Securities upon the request of Shareholder made at any time after the second
anniversary of the Closing Date.
(j) Changes in Registrable Securities. If, and as often as, there
---------------------------------
are any changes in the Registrable Securities by way of stock split, stock
dividend, combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Registrable Securities as so changed. Without limiting the
generality of the foregoing, InterCept will require any successor by merger or
consolidation to assume and agree to be bound by the terms of this Agreement, as
a condition to any such merger or consolidation.
Signatures begin on next page.
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This Registration Rights Agreement is duly executed as of the date first
above written.
"InterCept"
The InterCept Group, Inc.
By: /s/ Scott R. Meyerhoff
--------------------------
Name: Scott R. Meyerhoff
Title: CFO
"Shareholder"
SLMsoft.com, Inc.
By: /s/ Dev. Misir
------------------
Name: Dev. Misir
Title: EVP
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